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Earl Ferrers: We now come to a number of detailed amendments concerning the scheme for construction contracts. That is a set of provisions which will operate when a contract fails to make proper provision for a number of matters which are the subject of this Bill. It would operate where contracts do not contain adequate arrangements for adjudication or where payment arrangements were deficient in certain respects. The scheme will be made as a statutory instrument by the Secretary of State in England and Wales and the Lord Advocate in Scotland. The draft proposals for England and Wales have already been made available to your Lordships.
Amendments Nos. 161 and 193 in the name of the noble Baroness, Lady Hamwee, would have the effect of moving the reference to arbitration law from Clause 105 to Clause 111. We know that there are some who feel that such a reference is not at all necessary, but we feel that not only is it necessary but that it also belongs rightly in the clause which deals with adjudication.
As regards the scheme-making powers to which Amendment No. 192 refers, I assure the noble Baroness that under Section 14 of the Interpretation Act 1978, the powers to make a scheme would also confer powers to amend it from time to time using the same procedures.
With Amendment No. 197, the noble Baroness raises the more important point of whether such powers should be made subject to the affirmative resolution procedure, which has been mentioned more than once today. I hope that Members of the Committee will agree that we have been quick to concede that, where we have not got it
However, the power to make the scheme for construction contracts is somewhat different. It would not be used to amend primary legislation as it currently applies; all it would be used for is to apply and, if necessary, modify certain provisions of arbitration law which would only operate within the very limited confines of scheme adjudication. It would not amend the Arbitration Bill, or the equivalent Scottish provisions--as applied to those seeking dispute resolution through arbitration--and it is not, therefore, a Henry VIII clause, which I know always frightens everyone. I can assure the noble Baroness of that. It is right, therefore, in this respect that it should not be subject to affirmative resolution.
The noble Baroness asked whether the consultation and discussion over the draft proposals would be in the widest form. I believe that I can assure her that that will be so. We have published the draft proposals because Members of the Committee were concerned to see the sort of proposals that we had in mind. They are draft proposals, and they have been sent out not only to Members of this place but also to others in the industry for consideration. They will let us have their views. It will then be up to the Government to produce draft proposals which will then be sent out for consultation before the appropriate statutory instrument is laid.
I turn now to Amendment No. 194 tabled in the name of the noble Lord, Lord Howie of Troon. It seemed to surprise the noble Lord that it was on the Marshalled List or in this group of amendments. In fact, it made him jump. Of course, I do not blame him. I understand his puzzlement as to the reason why my noble and learned friend the Lord Advocate has been nominated as the Minister responsible for making the scheme for construction contracts for Scotland. I believe that we had such a discussion on Second Reading and I thought that my noble friend Lord Lucas had dealt with it as he has dealt so excellently and clearly with all the other matters raised. However, perhaps the concentration of the noble Lord was relaxed at that moment. He needs to be convinced and I shall try to do so.
The noble Lord said that the Government may well be right. That was most generous of him. However, I happen to believe that the Government are right and the noble Lord is on the right track. Shortly put, the reason why my noble and learned friend the Lord Advocate is the appropriate Minister for the job is that he has ministerial responsibility in Scotland for dispute resolution. The Secretary of State for Scotland has no ministerial responsibility in that area. Therefore, it is entirely appropriate that my noble and learned friend should be the Minister who is to make the scheme in Scotland. I hope that that explanation is helpful and that
Lord Howie of Troon: Yes, that explanation has helped me. In fact, it went further than I expected. It indicated the areas of responsibility upon which I was not clear. I understand that the Lord Advocate is involved in disputes, but is he also involved in payments as part of the scheme?
Lord Monkswell: In his response the Minister mentioned on at least two occasions the fact that the draft scheme--this first shot, as he described it--had been made available to Members of this Chamber. I have to advise the noble Earl that it has certainly not been made available to me. Moreover, following sight of the document by courtesy of my noble friend Lord Berkeley, I checked with the Printed Paper Office and with the Library of the House but neither department recognised the document. Therefore, could some other mechanism be found to ensure that all Members of this Chamber have sight of such documents?
I do not believe that the situation is particularly unique; indeed, we have had other Bills recently where draft schemes have been circulated. It is possible that there is a need to devise a circulation mechanism rather like that which applies to a Green Paper or a White Paper to ensure that all Members of this place have access to the relevant documentation.
Baroness Hamwee: Perhaps I may add to the questions that have been put to the Minister before he responds. Does the noble Earl have a timetable for the consultation or, at any rate, for the first stage of the process? I am not sure whether responses have been requested from the industry by a particular date. Perhaps the noble Earl can tell the Committee how he sees the process going in terms of time; and, indeed, tell us how that will fit in with the progress of the Bill. In addition, my concentration may also have been a little relaxed--to use the noble Earl's wording when replying to the noble Lord, Lord Howie of Troon--in that I am not sure whether the noble Earl responded to Amendment No. 191.
Earl Ferrers: I should like first to point out that the intervention of the noble Lord, Lord Monkswell, greatly disturbed me. It is an important document and I gave instructions that copies of it should be sent to every Member of the Committee who had spoken. I believe that my noble friend Lord Lucas signed the letters, so I do not understand what has happened. The noble Lord was either left off the mailing list, or the letter may have gone astray, which may explain why he has not received it. Instructions were also given that copies should be available in the Printed Paper Office and in the Library. I am disturbed that the noble Lord was unable to obtain a copy from those departments. As I said, I am most
The noble Baroness wanted to know about the progress of consultation and the relevant dates. I believe that the results of the consultation will probably appear after Royal Assent. Clearly one has to leave a certain amount of time to allow people to react to the documents. Therefore, the response is not likely to be available all that soon.
As regards Amendment No. 191, I should point out that this amendment would fundamentally change the nature of the Secretary of State's powers. It would mean that the provisions of the scheme could override any arrangements parties had freely entered into by contract, even where they met the statutory requirements laid down in Part II of the Bill. I believe that that would go too far. The purpose of the scheme is to supply provisions which can be used where matters are not adequately dealt with in the contract. It is not our intention to go further than is necessary to achieve the minimum statutory safeguards, as the amendments would do. That is the reason why we are not too keen on the amendment. However, I can assure the noble Baroness that her concentration was not relaxed at that moment. Indeed, I believe that my concentration was not as fine tuned as it might have been in that I failed to reply adequately to the amendment. I can only apologise for that omission.
Baroness Hamwee: I am not sure that my concentration has been entirely engaged and, indeed, perhaps not my intellect. I do not really understand the Minister's response. I was trying to limit the Secretary of State's power by the amendment. However, we have debated the issues for quite a long time and I shall not, therefore, press the matter.
Lord Howie of Troon: I am very grateful for the Minister's helpful remarks with regard to the Lord Advocate. However, I think he helped me in an area where I did not need help at all. He said that the Lord Advocate had a significant role here because the question of payment would be part of a dispute. He will see that Part II relating to payments is not about disputes. I think I am right in saying that it is about ordinary payments in the course of the contract. Since it is not about disputes, it is none of the Lord Advocate's business and should happily be handed over to the department of the Secretary of State for Scotland.
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